Legal mechanism of the east african treaties in fighting cross border crimes, case study Gatuna border

CHAPTER Four

Legal analysis of International and Regional Instruments

4.1 Introduction

The aim of the present work is to explore particular cross border crimes in East Africa, and recommended options for effective responses. In doing this, it seeks to identify and discuss the different categories of cross border crimes; review efforts aimed at curbing cross border criminal activities by looking at the levels States collaborative processes and regulatory frameworks, and then, recommended effective options for government and civil society action on the issue. This present chapter will focus on analyzing different legal instruments, statement of the data in answer to research questions, discusses the achievements and legal analysis of the EAC Partner States to tackle cross border crimes. It also establishes the interpretations of the study in relation to the research objectives and the literature reviewed. Findings are derived from various legislations, legal documents, reports and the interviews done with various categories of respondents.

4.2 The significance of border controls

Borders have various connotations. First of all, they create effective barriers to human activity. Cross border crimes are an obstacle to freedom of movement, which is considered a fundamental right since 1948^14(*) and it's fighting still facing practical difficulties due to scare resources in Member States and the ability of criminals to move freely from one country to another. Frontiers have always been «conceived as the outer limits of the power of a sovereign state upon a population in a specific space^15(*). They define the physical limit within which a state may exercise its jurisdiction and enforce its authority upon those individuals who are present. Originally, nation state frontiers were first and foremost barriers against external military threats. They are traditionally considered in relation to concepts such as sovereignty, security and citizen allegiance.

Borders were also long seen as an effective tool to control trafficking and criminality within a country. It comes as no surprise that emphasis has been given to possible security risks once borders are abolished since the very beginning of the discussions leading to the Schengen Agreement^16(*). As Frontex Director Ilkka Laitinnen put it, the absence of borders makes it more difficult to stop criminals as "border control is a very effective instrument for stopping those who you don't want coming in. Without that, you have to have concrete suspicions before you can stop people^17(*). It is interesting to note that Laitinnen seems to regret the divergence between both forms of check, i.e. border and police controls. While border controls target all individuals who cross the line, police controls must be related to crime. According to this statement, police should be allowed to conduct checks at internal borders among member states without concrete suspicion.

4.3 Gatuna border control improvement in combating cross-border crimes

Cross border crime means any serious crime with a cross border dimension committed at or nearby the external borders of Member States^18(*). Normally the EAC borders still face challenges with respect to the quality of basic border infrastructures and procedures relating to their operational management. Border crossing need to facilitate the movement of goods and people to contribute to wider economic and social objectives beyond the adjacent regions. At the same time, they need to provide security and be effective with respect to illegal migration and organized crime. Border controls and the fight against cross-border crime demand very considerable human, material and financial resources beyond the capacity of individual East African states. There are many institutions that are involved in border security management. The Police Service, immigration Service all fall within this category. Customs administrators recognized very early on that customs would be a key agency in any fight against transnational organized crime. They are considered as the main agencies directly involve in border security together with the Ministry of Foreign Affairs. The Ministry of Foreign Affairs involvement in border security is by virtue of the fact that it authorizes the issue of visas to foreigners who enter the country and the police are stationed at the entry points of the country. Therefore, the border requires different modes of control and the presence of some specialized security agencies. Inter-state cooperation is thus a necessary part of combating this form of crime efficiently. Two levels of cooperation are possible here national and sub-regional. At the national level, states must:

· Reinforce border controls through the adequate and efficient presence of customs and border security personnel; and

· Abandon in part the sacrosanct principle of national sovereignty which makes a border a sacred, intangible, inalienable and impassable boundary. Useful results can only be hoped for if neighboring states establish common areas for border controls, particularly in «sensitive» zones.

In fact, effective border management requires that Gatuna border must be efficient in facilitating legitimate trade and transit and preventing illegitimate trade and transit. Still, the EAC has an important role to play for example in upgrading border crossing infrastructure.

The Gatuna Border Agency is responsible both for facilitating legitimate travel and trade, and for helping protect the EAC from the harm caused by terrorism and other crimes, including organized criminal activity, and individuals that seek to exploit ou. Gatuna border is one of the common border of the region, among others are: Namanga between Tanzania and Kenya; Rusumo between Rwanda and Tanzania; Busia between Kenya and Uganda^19(*) and Kanyaru between Rwanda and Burundi all are highly frequented.

Under article 11 of both the Trafficking in Persons Protocol^20(*) and the Migrants Protocol, States parties are required to strengthen border controls to the extent possible and, in addition to measures pursuant of the Organized Crime Convention^21(*), to consider strengthening cooperation between border control agencies, including by the establishment of direct channels of communication. Under article 12 of both Protocols, States parties are required to ensure the integrity and security of their travel documents.

Furthermore, as it expected at Gatuna border, under article 13 of both Protocols, States parties are also required, at the request of another State party, to «verify within a reasonable time» the legitimacy and validity of documents purported to have been issued by them. Staffs of the border liaison offices established by countries participating in the project come from a range of law enforcement agencies (specialized police, border police, border army, customs, local police, immigration, etc.). The border liaison offices are staffed by between two and five officers for a sustained period, to foster strong cooperation between individuals. On average, 2,000 people cross Gatuna-Katuna every day as well as 200 tracks, 40 buses and 35 small vehicles and this remain a hard task to a small group of custom officers^22(*).

Borders were also long seen as an effective tool to control trafficking and criminality within a country Border control agencies and border police lack staff, infrastructure and funding. Criminal networks benefit from that situation and are transporting groups across borders where there are no regular inspections. They need to be strengthened. The absence of borders makes it more difficult to stop criminals as "border control is a very effective instrument for stopping those who you don't want coming in. There are, however, many practical pressures on the EAC to agree at least a minimum of coordination of policies and to improve practical cross border cooperation between border control and immigration authorities

The practical outcome of the requirement to strengthen basic border controls is to make it more difficult for traffickers to use conventional means of transport to enter countries. Strengthening measures include making border controls more effective and preventing the misuse of passports and other travel or identification documents. Cross-border cooperation is recommended. Many of the issues raised by cooperation between border-control agencies in different States will be similar to those raised by cooperation between law enforcement agencies. There are however, many practical and political pressures on the EAC to agree at least a minimum of co-ordination of police and to improve practical cross border co-operation on border control.

* ¹⁴ Art 13 of the Universal Declaration of Human rights of 1948

* ¹⁵ Malcolm Anderson, Didier Bigo, «What are EU frontiers for and what do they mean?» ,p.8

* ¹⁶ Didier Bigo, Police en réseaux, l'expérience européenne», Paris: Presses de la fondation nationale des

sciences politiques, 1996, p. 101.

* ¹⁷ Passport-free travel from Estonia to Portugal», Spiegel Online, 19 December 2007 (retrieved on

22.02.2008 from http://www.spiegel.de).

* ¹⁸ Regulation of the European Parliament and of the Council, Art 3(d)

* ¹⁹ Rapport of the meeting of the Chiefs of immigration held in Kampala Uganda from 27^th -28^th July 2010 ( Ref:EAC/C/IMM/01/2010), p.9

* ²⁰ Trafficking in Person Protocol as well as the Migrant Protocol, art 11

* ²¹ Organized crime convention, art 27

* ²² Ivan R.MUGISHA, Rwanda, Uganda begin joint surveillance at Gatuna border, The New Times «Kigali, July 14, 2012»